Haljilji v Poseidon Tarama Pty Ltd (ACN 005 653 207)/ Monde Nissin (Australia) Pty Ltd (ACN 169 518 325)
[2019] VCC 1142
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05603
CI-17-05604
| ELVIS HALJILJI | Plaintiff |
| v | |
| POSEIDON TARAMA PTY LTD (ACN 005 653 207)/ MONDE NISSIN (AUSTRALIA) PTY LTD (ACN 169 518 325) | Defendant |
---
JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 and 5 June 2019 | |
DATE OF JUDGMENT: | 1 August 2019 | |
CASE MAY BE CITED AS: | Haljilji v Poseidon Tarama Pty Ltd (ACN 005 653 207)/ Monde Nissin (Australia) Pty Ltd (ACN 169 518 325) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1142 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – two discrete incidents with same employer – injury to the lower back – paragraph (a) of the definition of “serious injury” – injury to the head and neck – paragraphs (a) and (c) of the definition of “serious injury”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Kite v George Patterson Pty Ltd & Anor [2008] VCC 1172; Bell Radiology (a Firm) v McGraw (unreported), VSCA, 7 February 1996 (BC9600138)
Judgment: Leave granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr G Clark | Shine Lawyers |
| For the Defendant | Ms A Magee QC with Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
1 In each of these two proceedings, the plaintiff seeks leave to bring a proceeding for the recovery of damages in respect of the pain and suffering and loss of earnings consequences of injuries caused in two different circumstances in the course of his employment with the defendant. Though two separate employer companies are named, I was informed that the difference is in name only, and that the plaintiff was employed by, in effect, the same employer at all relevant times.
2 In proceeding CI-17-05603, the leave sought is in respect of an injury to the lower back[1] sustained, principally at least, on 16 April 2014.
[1]In the end, reliance upon psychiatric injury arising from the back injury was not persisted with – Transcript (“T”) 63
3 In proceeding CI-17-05604, the leave sought is in respect of injury to the head and neck, sustained when a metal clamp fell upon the plaintiff’s head on 11 February 2015. In this proceeding, the plaintiff relies upon both physical and mental consequences of the injury so sustained, and so upon both paragraphs (a) and (c) of the definition of “serious injury”.
4 In the usual way, only the plaintiff gave evidence before me. He was cross-examined from medical histories and on the content of his three affidavits, in which he recounted the problems arising from both the low back injury and the head injury. The parties tendered medical, radiological and vocational reports from the Court Books.[2] The reports come from perhaps thirty authors in all. Some of the reporting dealt with the injuries relied upon in both the applications; others confined themselves to one or the other.
[2]Exhibits 1 and 2
5 In the witness box, the plaintiff’s presentation was a little unusual. There was sometimes a considerable delay before he gave an answer, though he appeared to me to be trying to give an accurate account of what had happened to him and of his experience of his symptoms. At times he became loud and irritable without any obvious provocation. I did not think he was in any sense evasive or prone to exaggerate his account, and at times he gave answers which did not much help his case, and did so readily. I accept his evidence.
6 I will briefly set out the plaintiff’s working background before turning to each of the separate applications.
7 The plaintiff is forty-one years of age and was born in North Macedonia. He came to Australia at the age of four, attended school until Year 10 and then completed an apprenticeship as a fitter and turner. Thereafter, he worked for a variety of employers in his trade, and began working for the defendant in June 2012 as a maintenance fitter. The defendant is a well-known manufacturer of dips and other food products, and the plaintiff’s job was to service, maintain and repair the machinery used in the manufacturing process.
8 The plaintiff’s medical history includes surgery in his teens to correct a lazy eye. In 2005, in the context of family and relationship difficulties, the plaintiff was diagnosed with depression and with an Obsessive Compulsive Disorder, for which he saw a psychiatrist on three occasions and for which he took Zoloft for a number of years. In 2007 and in 2010, the plaintiff had episodes of low back pain, each of which resolved after some months.
9 Prior to the injuries that these proceedings concern, the plaintiff worked a 38-hour week, regular overtime and, in some weeks, weekend work as well. In the financial year ended June 2013, the plaintiff’s gross taxable income was $109,609.
The proceedings concerning the low back injury
10 On 16 April 2014, the plaintiff was adjusting the foot of a stand that supported a conveyor belt, a task which required him to exert significant force whilst in a crouched position. When he stood up from this position, he felt immediate pain in the right side of his low back and down to his knees, worse on the right side. As will be seen, the great weight of medical evidence in the case is that the plaintiff sustained the aggravation of degenerative lumbar disc disease in this event, which included prolapse of the L5-S1 disc at the least.
Chronology of injury and treatment for the back injury
11 On 16 April 2014, the plaintiff attended Dr Elizabeth Hu, his local general practitioner, who recorded a history of pain since he “went to get up”, and findings of tenderness on the right side of the spine, and restricted movements.[3] Dr Hu referred him for physiotherapy and prescribed Panadeine Forte and Mobic.
[3]Exhibit 5
12 The physiotherapist took a history which included that the plaintiff heard a “pop” at the time of the injury and made a diagnosis of lumbar disc injury causing constant right lower back pain and muscle spasm, aggravated by movements.[4] The plaintiff continued to be treated with physiotherapy twice a week, with slow improvement, though still complaining of stiffness, pain and restricted lumbar flexion, and the notes record that when he returned to work and began lifting again, his lower back regressed in terms of pain.
[4]Exhibit 4
13 He was referred for clinical Pilates, though he did not attend regularly, and his pain continued to fluctuate, worsening with bending, twisting and lifting movements.
14 The plaintiff was off work for a brief period and, after his return, worked on full duties, although his back pain persisted. The general practitioner recorded on 20 May 2014, “back getting much better, seeing physio, making progressive improvements … .”.
15 On 13 June 2014, the note records, relevantly, “otherwise going well, still recovering from back injury”.
16 On 4 September 2014, almost as an incidental history, it is recorded “also back injury, had treatment through physio, pain not getting better”.
17 On 3 December 2014, it is recorded “working missed Pilates treatment, back pain flared up two days, on examination … unable to flex or extend lumbar spine, unable to lie on bed to be examined”. WorkCover certificates were written, and rest and analgesia recommended.
18 On 8 December 2014, Dr Hu’s note reads, “says back is still sore, and says it is worse, no new injury over the weekend, request MRI of lumbar back”.
19 Then, on 9 December 2014, a new doctor, Dr Achar, recorded this:
“[S]evere back spasm and stiffness for the past 24 hours, re injured his back while at work o/e severe tenderness in mid lum[b]ar spine and right paraspinal region, limited flexion and extension and slrt right side only 30 deg, left side 80 to 90 deg, hip movements normal but limited by pain in the right right low back.”[5]
(sic).
[5]Exhibit 5, page 25
20 Prescriptions for Naprosyn and the narcotic analgesic, Tramadol, were written.
21 On an uncertain date in December 2014,[6] the plaintiff was working in a ceiling space and bent over inspecting a valve:
“… During the inspection I needed to duck under ducts in the ceiling space and climb over vents. As I came down from the ceiling I noticed an increased pain in the right side of my low back. I continued working but my pain got worse and I left home an hour early. I was off work for about three days. I remember trying to go to work on one of these days and I had to go straight back home as my back pain was intolerable. I returned to work on restricted duties working six hour shifts.”
[6]Paragraph 13 of the plaintiff’s affidavit at Plaintiff’s Court Book (“PCB”) 20
22 In cross-examination, the plaintiff was unable to say which of the December attendances for treatment set out above followed this “coming down from the ceiling”.[7] On the basis of his description, that seems likely to have been about 8 or 9 December 2014. Although WorkCover certificates were written following his attendance on 3 December 2014, no documents from the employer or attendance records were put in evidence, or to the plaintiff, that might have shed light on this question.[8]
[7]T14, L12-26
[8]The various December 2014 attendances raise the possibility (as the plaintiff suggested –T16, line 9) that his back had been giving him rather more trouble for a week or so before the “coming down from the ceiling” event
23 The most (relatively) detailed contemporaneous account of the “coming down from the ceiling” appears in the history taken by Dr John Findeisen, consultant rheumatologist, who saw the plaintiff on behalf of the WorkCover insurer on 22 December 2014.[9] His history included this:
[9]Defendant’s Court Book (“DCB”) 10
“Approximately three weeks ago, he was working in the ceiling bent over doing a job. When he came back down, he was aware of increased right-sided lower back pain. He continued to work during the shift and the pain got steadily worse. He left work half an hour early. By the time he arrived home, he could barely get out of his car and he rated the pain as 8/10. He rang his boss and informed him of the problem. The next day the pain was still severe and he went back to the GP and was sent back to his physiotherapist.
He was off work for three days. He returned to work but was restricted ...”
and:
“He has continued to work with a 5 kg limit on any lifting doing six-hour shifts with no repetitive bending, twisting or lifting. … .”[10]
[10]DCB 11
24 By the time of Dr Findeisen’s examination, the plaintiff reported his pain was gradually improving. Dr Findeisen made a diagnosis of a right-sided L5-S1 disc prolapse that occurred at work on 16 April 2014, which was further aggravated three weeks earlier, working in a ceiling. He was hopeful that he might return to full unrestricted duties in the longer term.
25 When next seen by the general practitioner following an MRI scan, on 18 December 2014, the general practitioner’s note includes:
“Pain marginally improved still effecting (sic) day to day duties.
…
keen to get better and go back to work.”
26 When seen again on 8 January 2015, the general practice records that the symptoms were marginally improved, and on 15 January 2015, the note includes:
“[H]aving treatment with physio and pilates, … [working] 7 hours a day, 5 kilo capacity, had MRI done, see … [results].”[11]
[11]Exhibit 5, page 24
27 On 30 January 2015, the history includes that the plaintiff was –
“… concerned about his back, some improvement but can still feel pain with all activities. … .”[12]
[12]Exhibit 5, page 24
28 By this stage, the plaintiff had been referred to the neurosurgeon, Mr Timms, and an MRI scan had been performed on 16 December 2014.
29 The MRI scan[13] is much referred to in the medical reporting in the case. It shows changes at a number of levels, and the radiologist reported:
“At L5/S1, a broadbased disc bulge is associated with focal extruded or sequestrated right paracentral disc fragment, this contacts and displaces posteriorly the traversing right S1 nerve root, most certainly responsible for the patient’s presentation. Central canal is not compromised. Left S1 nerve root traverses freely. … .”
[13]PCB 58
30 The radiologist concluded:
“Focal right paracentral disc protrusion with extruded or sequestrated fragment at L5/S1, with compression of the traversing right S1 nerve root in the subarticular recess.”[14]
[14]PCB 58
31 Although there was some cross-examination concerning this, it seems clear that the plaintiff had not returned to full duties[15] when the head injury, the subject of the second application, was sustained on 11 February 2015, as he was still restricted to lifting weights less than 5 kilograms and, at the outside, was working seven hours a day.
[15]A number of histories in evidence record tensions between the plaintiff and his superiors about his inability to carry out all of his work.
32 The plaintiff has not returned to work since 11 February 2015. Following the progress of his lumbar spine injury after that time shows that he continued to be treated by the physiotherapist and to be managed for lumbar symptoms by the general practitioner, Dr Achar, and by the neurosurgeon, Mr Craig Timms.
33 Mr Timms first saw the plaintiff on 5 February 2015.[16] Mr Timms took a history of the initial incident, of aggravating it in December 2014, and that –
“… He is back at work at the moment and he does have back pain and sciatica and difficulty with his legs, worse on the right leg than the left. He is otherwise well.”
[16]PCB 80
34 Mr Timms wrote that the MRI scan showed a focal disc protrusion on the right at L5-S1 and that he was hopeful his symptoms would settle, and he outlined possible further treatments in the form of epidural injections and, as a last resort, microdiscectomy on the right at L5-S1.
35 In October 2015, Mr Timms saw the plaintiff for review, and a history of the head injury was obtained, as was a history of persistent back pain with sciatica. Mr Timms referred the plaintiff for repeat MRI scan, which he wrote –
“… showed that he had persistent disc injuries particularly in the lower three discs, worst at L4-5 and L5/S1.”[17]
[17]PCB 83
36 Mr Timms recommended continued conservative treatment. The MRI report is at PCB 63.
37 Mr Timms reviewed the plaintiff in July 2016 and November 2016, and, relevant to the low back injury, took a history of increasing back pain and sciatica for which he ordered a further MRI scan, of which he wrote:
“The lumbar spine confirmed the persistent disc injuries at L4-5 and L5/S1 which I felt was likely where his symptoms were coming from. … .”[18]
[18]PCB 83
38 Mr Timms continued to recommend conservative management whilst not excluding cortisone injections or, as a last resort, surgery.[19]
[19]Mr Timms’ letter to the general practitioner, PCB 85
39 Mr Timms reviewed the plaintiff on 30 November 2018, and obtained a history that he was “struggling with back pain and his back locking on particular movements as well as sciatica down the right leg”. There was also numbness on the top of the left foot. Mr Timms thought the recent MRI scan showed persistent disc injuries of which the L5-S1 “is probably the symptomatic lesion”. Once again, he recommended conservative management, and left open the option of a cortisone injection.
40 In his letter to the solicitors,[20] Mr Timms wrote in February of this year that, as far as the low back is concerned, the plaintiff’s condition is stabilised, he still requires analgesia, physical therapy and epidural steroid injections and that he is likely to have chronic back pain and sciatica, and that, as far as his back condition is concerned, he is precluded from his pre-injury duties for the foreseeable future.
[20]PCB 86
41 In respect of the lumbar spine injury, Mr Timms’ diagnosis, and his opinion that the lumbar disc injury at L5-S1 precludes return to work (at the least) as a maintenance fitter, accords, in degrees at least, with a number of other medical opinions in evidence in the case ─
· Mr Kenneth Myers, consultant general surgeon[21]
[21]PCB 131-132
· Dr Robyn Horsley, occupational physician[22]
· Dr Ales Aliashkevich, neurosurgeon.[23]
[22]PCB 146; 160
[23]PCB 212-249. Dr Aliashkevich, PCB 231, placed rather more emphasis on the December 2014 exacerbation than most of the other commentators.
42 Although the radiology is variously reported by the practitioners who have provided reports in the case, and by those who have treated the plaintiff and ordered the studies, they were also reviewed by a specialist consultant radiologist, Dr Anthony Cam. After reviewing the studies, he concluded that the symptoms immediately following the 16 April 2014 event and the later finding of –
“… a new large disc extrusion at L5/S1 support the view that the lumbar spine pathology at L5/S1 is related to and caused by the 16 April 2014 WorkCover injury. … .”[24]
[24]PCB 267
43 Dr Findeisen, referred to earlier, is of the same view.
44 Dr Clayton Thomas, consultant in rehabilitation and pain medicine, saw the plaintiff for medico-legal purposes in August 2016.[25] He attributed the disc injury to arising from the crouched position underneath the machine, a reference to the April 2014 event.
[25]DCB 124
45 Dr Joseph Slesenger, occupational physician, examined the plaintiff in October 2016 and, so far as the lumbar spine injury was concerned, wrote that the plaintiff would be able to return to work on modified duties and restricted hours – at least 19 hours per week.[26]
[26]PCB 68
46 In January 2017, a Medical Panel assessed the plaintiff’s whole person impairment resulting from the specific incident on 16 April 2014 at 5 per cent in accordance with the appropriate Guide to the Evaluation of Permanent Impairment, and in its reasons stated that the plaintiff:
“… is suffering from a residual dysfunction of the lumbar spine following a now resorbed L5/S1 disc extrusion, with bilateral lower limb symptoms but without radiculopathy, attributable to the accepted back injury with a designated injury date of 16 April 2014.”[27]
[27]DCB 161. The Medical Panel had a history of the worsening of symptoms following working in the ceiling in December of that year.
47 Later, in April 2018, a different Medical Panel, in answer to questions relating to a specific period of time ending in August 2017, gave the opinion that the plaintiff could not perform most of the inherent requirements of his pre-injury duties, and in their reasons wrote that the physical effects of the lower back injury were such that he should avoid a wide range of activities which they list,[28] and that they would prevent return to his pre-injury work, noting “that situation has existed since 16 April 2014”.[29]
[28]DCB 179
[29]DCB 180
48 Professor Cook, referred to later in these Reasons, was also of the view that the symptoms the plaintiff reports now “dates to a mechanical injury sustained on the date of 24 April 2014. It was aggravated by his work later.”
49 In October 2017, the plaintiff was examined by Mr Michael Dooley, orthopaedic surgeon. Mr Dooley accepted that the plaintiff had sustained an aggravation of underlying degenerative disc disease and may have sustained a right-sided lumbosacral disc prolapse. He thought the symptoms and signs were greater than he would have expected, and expressed his belief that the plaintiff would have the physical capacity to perform light forms of employment identified in correspondence that had been provided to him.[30]
[30]DCB 87-88
50 Dr David Barton, occupational physician, examined the plaintiff in March 2018.[31] Unlike most of the other medical commentators in the case, he did not think there was much to find on examination, or in the radiology, and doubted that injury was a cause of his continuing complaints. In his view, the plaintiff was fit for his usual work.
[31]PCB 109
51 The plaintiff’s account of his back injury, and treatment for it, is set out in his first affidavit and accords with the clinical records I have set out. In his affidavit, sworn in July 2017, he described his lower back symptoms in these terms:
“I have pain in my low back all the time, however the severity of the pain varies. My back pain is made worse when I am bending or lifting something like a bag of groceries. My back pain increases with prolonged sitting, standing and walking. Some days this happens after I0 minutes and on other days an hour. I lie down about 1 - 3 times a day in my bed to relieve my back pain. If I go for a walk I will usually come home and lie down. My back pain is worse in cold weather. The pain in my back is worse on the right side of my back. I also have pain in my right buttock all the time. I get twitching in the right buttock multiple times a week. I have pain and weakness in both my legs but it is worse on the right leg. I have numbness in my left foot. If I have gone for a long walk or if I have been active during the day I get pins and needles in both legs. If I have had a particularly active day, such as if I have gone out with friends or done the shopping, the next day I am usually in bed due to back pain.”[32]
[32]PCB 23-24
52 Dr Barton also stated that he does not believe the plaintiff could return to his previous work as a fitter and turner on a full-time basis.[33]
[33]PCB 27
53 In further affidavits, sworn in November 2018 and May of this year, the plaintiff describes continuing low back and right leg pain, difficulties when standing, bending and sitting, continuing analgesia, chiropractic treatment, episodes of spasm and difficulty with domestic tasks and aspects of personal care.
54 In relation to his back condition, the plaintiff readily agreed that he had had two earlier episodes of back pain with earlier employers, and accepted that the clinical notes showed that up until December 2014, his back was improving, and that it had improved after that time, so that by the time the head injury occurred, he was nearly ready to resume working 8 hours a shift, with the 5-kilogram weight restriction.
55 The plaintiff’s account of his back symptoms, tolerances and the difficulties the back symptoms caused to him was not challenged in cross-examination, and so they may be set out relatively briefly.
56 In his affidavit of November 2018, the plaintiff described his current symptoms:
“I have ongoing pain in my lower back. This is a chronic ache. The pain can be quite severe. There are times I suffer from twitching and spasm in the back. When my back is in spasm the pain can be extreme. When my back is in spasm, the pain is in my lower back and radiates to my right buttock and down my right leg. At those times, my whole spine seems to tighten up.
The pain in my lower back radiates out into both my right and left buttocks. The pain is worse down my right leg. I have constant pain in the right leg.
I continue to have difficulties standing, bending and sitting.”[34]
and:
“The pain in my back and my restrictions impact upon my mood. Because of the pain I become short tempered and irritable. That pain continues to restrict me in respect to sitting, standing and walking. I suffer pain when I bend, lift, whilst driving and when walking any distance.
There are a range of day to day activities which I continue to struggle with because of my back. For example, simply putting my shoes and socks on. I have difficulty doing many normal household activities. I often have to rely upon my mother and other family members.
There has been no improvement in my lower back pain and function since affirming my previous affidavit. My back pain is now worse than at the time of my previous affidavit.”[35]
[34]PCB 29-30
[35]PCB 31
57 In his most recent affidavit, of 30 May 2019,[36] the plaintiff stated that his lower back caused pain, and disability was unchanged.
[36]PCB 35
58 In cross-examination, the plaintiff readily allowed that at one point in recent times, an epidural injection, which has long been a treatment option referred to in Mr Timms’ correspondence, was arranged, but the plaintiff changed his mind about having it. He agreed that Tramadol had been stopped and that he was now taking Panadeine Forte, and that he continues to receive regular chiropractic treatment which gives him good but temporary relief. It was not suggested to him that he could perform his former work as a maintenance fitter. He also agreed that there have been recent changes to his medication regime, as reported by Dr Hajoona, who took over as his general practitioner in more recent times.[37]
[37]PCB 122
Submissions of Counsel in relation to the lumbar spine injury
59 At the close of the evidence, counsel for the plaintiff informed me that the case in relation to the lumbar spine injury was put this way. The plaintiff relied only upon paragraph (a) of the definition of “serious injury”. The plaintiff relied upon the injury sustained on 16 April 2014 as causing the disc injury, on the basis that the December symptoms were a “flare up” of the original injury.
60 As to the loss of earnings consequences, it is the plaintiff’s case that his “without injury” earnings are $109,600 odd, and that the great weight of medical opinion in the case is that, taken alone, the lumbar spine injury permanently incapacitates him for maintenance fitting work, and that all of the alternative employments identified in the vocational reports[38] in evidence, if he worked full time in them, would yield less than 60 per cent of his “without injury” earnings.
[38]IPAR 130-Week Vocational Assessment Report dated 24 October 2016 – draughtsperson; robotics technician (DCB 121); Nabenet Vocational Report dated 1 November 2017 – warehouse export clerk; call centre representative (DCB 144-145); Nabenet Supplementary Vocational Assessment Report dated 31 October 2018 – machine operator; quality inspector spare parts/warehouse operator; hardware sales consultant; inventory controller; (DCB 148-152); Flexi Personnel Employment Assessment dated 12 November 2018 (PCB 270-285) – Vocational Directions Pty Ltd Supplementary Vocational Assessment Report dated 2 May 2019 (PCB 286-356)
61 The plaintiff submitted, by reference to the clinical records after April 2014 and to the radiological and relatively contemporaneous medico-legal reporting, that it was clear that the disc injury was sustained in the April 2014 incident and that this was the weight of medical opinion across the whole of the medical evidence, and, further, that the weight of the medical evidence was that the coming down from the ceiling event was merely a “flaring up” of that condition.
62 The defendant submitted, in relation to the lumbar spine injury, that the plaintiff had failed to “disentangle” the consequences of it from the other, later, injuries to the neck and head, and had failed to disentangle the psychological conditions from either. The defendant submitted that the April and December 2014 events could not be aggregated, and that the evidence did not allow the consequences of the two events to be considered and compared in the Petkovski v Galletti[39] and R J Gilbertsons Pty Ltd v Skorsis[40] sense. The defendant also submitted that the plaintiff had failed to discharge the onus he bears in relation to his “after injury” earnings because there had been no retraining or rehabilitation.[41] It submitted also that, given more recent investigations, the results of which were not in evidence, permanence had not been proved. The defendant also submitted that there was no evidence[42] that suggested that the plaintiff could not have continued in the sort of work he was doing in the month or so before the head injury, and that that employment (whether suitable or not) should be regarded as the measure of his after-injury capacity to earn, and, as there was no evidence as to his earnings in that work, the plaintiff had not discharged the onus he bears in relation to the economic consequences of the back injury. It was submitted that the alternative duties identified in the vocational reports were not the appropriate measure, as they did not cover the field.
[39][1994] 1 VR 436
[40](2000) 12 VR 386
[41]As to this I should mention that in Dr Achar’s reporting, there is reference to the termination of the plaintiff's entitlement to medical and like expenses under the Act and the difficulty this presented to his participation in rehabilitation.
[42]Cf footnote 3
Analysis
63 After reviewing the whole of the evidence, I am satisfied that the plaintiff suffered an injury to (at least) the lumbosacral disc in the incident he describes on 16 April 2014. I am satisfied that as a result of this injury, the plaintiff has a permanent impairment or loss of function of the spine. This conclusion is supported by the great weight of the specialist opinion in the case which I have set out above. I am satisfied that that injury results in, and materially contributes to, his present incapacity to return to employment as a fitter. In my view, the weight of the evidence leads to a conclusion that the increase in symptoms experienced in December 2014 was a “flaring up” of the persisting symptoms from the original disc injury, which had been diagnosed by the physiotherapist who saw him on that day in April 2014, and which was a cause of that flaring up. In case I am wrong about that, it is my view that these two episodes of “worsening”[43] of his degenerative disc disease of the lumbar spine are properly characterised as repeated insults to the same body part arising from the same system of work, and “due to the nature”[44] of his employment ─ that is, the requirement to do maintenance fitting work in stooped and awkward postures. In that circumstance, I am not persuaded, as the defendant submitted, that the decision in Lu v Mediterranean Shoes Pty Ltd[45] would prevent aggregation of the two episodes’ consequences.[46]
[43]“Worsening” as shorthand for the extended definition of injury in the Act – “recurrence, aggravation, acceleration, exacerbation or deterioration”
[44]Cf. s39(3), and in the opening words of s327
[45][2005] VSCA 65 at paragraph [36]
[46]In this regard, Counsel for the defendant reminded me of my Ruling in Kite v George Patterson Pty Ltd & Anor [2008] VCC 1172 – see also Bell Radiology (a Firm) v McGraw, unreported, Victorian Supreme Court of Appeal, 7 February 1996 (BC9600138)
64 I am satisfied that the impairment or loss of body function of the plaintiff’s spine has resulted in pain and suffering consequences which are, when judged by comparison with other cases in the range of possible impairment or losses of body function, fairly described as being more than significant or marked and as being at least very considerable. In making that assessment, I have been careful not to include psychological or psychiatric consequences of the physical injury.
65 In my view, the plaintiff’s “after injury” earnings, taking the lumbar spine caused impairment of function alone, are no better than those that might be earned in the lighter forms of employment postulated in the vocational reporting, and, accepting his account of his back symptoms, it is likely he would have difficulty working full time. Even if he was able to work full time in suitable employment, none of the jobs suggested in the vocational reporting would yield more than 60 per cent of his “without injury” earnings ($109,600), on an annual basis.
66 The plaintiff was educated to Year 10 in a technical school. He has only ever worked as a fitter, and is now forty-one years of age. He is, on his own account, not good at reading and spelling, and has very basic computer skills. He has limited tolerance for postural maintenance. Nearly all of the medical commentators place considerable restrictions upon the work duties he might perform.[47] The restrictions are permanent in the eyes of most.
[47]Most would prevent the sort of work he was performing under restrictions at the time of the head injury, for example Dr Horsley at PCB 160.
67 In relation to the back injury, in order to satisfy s134AB(38)(f), the plaintiff must discharge the onus of satisfying me that not only are the loss of earning capacity consequences “at least very considerable”[48] but also that he has a permanent loss of earning capacity of 40 per cent or more measured in accordance with that Section.
[48]He has already lost substantial earnings because of the injury.
68 I am satisfied that at the date of hearing, the plaintiff has a loss of earning capacity of 40 per cent or more and that the plaintiff will, after this date, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more.[49] I am also satisfied that the plaintiff does not have a capacity for any employment which, if exercised, would result in the plaintiff earning more than 60 per cent of his “without injury” earnings from personal exertion had the injury not occurred.
[49]Section 134AB(38)(e)
69 For those reasons, in proceeding CI-17-05603, the plaintiff is granted leave to bring a proceeding for the recovery of damages for pain and suffering and loss of earning capacity in respect of the serious injury to the lumbar spine sustained in the course of his employment with the defendant.
Proceeding CI-17-05604
70 I turn now to the injuries sustained when the “G” clamp[50] fell and struck the plaintiff on the head on 11 February 2015.[51] Before final addresses commenced, counsel for the plaintiff informed me that in this application, it is the plaintiff’s case that this event caused either post-traumatic headache syndrome or post-traumatic vestibular symptoms and an injury to the neck, or post-concussion syndrome, and that the psychological injury relied upon was caused by the injury itself and by the physical symptoms affecting the head and neck.
[50]So described in the Claim Form (PCB 50), though in other documents described as an “F” clamp
[51]A photograph of the laceration, taken on that day, exhibit EH-1, appears at PCB 27B
71 In his first affidavit, the plaintiff said that after he was struck –
“… My vision went black straight away. I then ran out of the room as I was afraid of being hit again. As I came back into the room, a co-worker told me I was bleeding. I got a severe headache and pain in my neck and eye sockets and in my left ear. I also felt dizzy and lightheaded. I went to the first aid. I then went to a company doctor who was up the road. I had a scan of my neck.”[52]
[52]PCB 20
72 Apart from brief attempts to return to work, which ended in June 2015, the plaintiff has not worked since. A claim for compensation in respect of the head injury was accepted.[53]
[53]PCB 52
73 In his more recent affidavits,[54] the plaintiff sets out the history of the treatment and investigation of his head injury related symptoms.
[54]PCB 28-43
74 In his affidavit of November 2018, the plaintiff gives an account of neck and radiating pain affecting his left hand, and of altered sensation on the left side of his face, and –
“… I suffer constant headaches. I have pain up the back of my neck into my head. I also suffer regular migraines. When I suffer the migraines I have to take myself off to bed. I had not suffered migraines before the incident at work. When I have the migraines, I suffer from flickiness in my vision and sensitivity to light.”[55]
[55]PCB 32
75 The plaintiff recounts a range of difficulties with concentration, sleep and mood, as well as with simple organisational tasks.
76 In his affidavit of 30 May 2019, the plaintiff states that his symptoms are not much changed, and that he has been prescribed antidepressants, anti-inflammatory medication and Tramadol, which he is trying to reduce. He states that he has been referred to a new psychologist. He is still having nerve blocks and chiropractic treatment, and is on a waiting list at the Barbara Walker Centre for Pain Management. As to his psychological state, he describes withdrawal, mood swings, depression and sadness.
77 In cross-examination, the plaintiff readily agreed that all of his various symptoms of pain/dizziness and of mood, most of which he attributes to the head strike, operate together and cause to him the impairment consequences of which his affidavits speak, and, together prevent him returning to work. He also agreed with histories and observations, recorded of relatively recent times by Dr Horsley and Dr Tang, that his concentration, and his endurance of postural maintenance, had improved.
Chronology of treatment of the head injury
78 About two days later, the plaintiff attended Dr Achar, and at about that time – it is not quite clear whether Dr Achar sent him or not – he attended the Emergency Department at The Alfred hospital. An MRI scan of the brain and cervical spine performed on 5 March 2015[56] was reported as showing minor foraminal disc bulging without nerve root compression and no abnormality of the brain.
[56]PCB 60
79 Dr Achar referred the plaintiff to Mr Patrick Walsh, ENT surgeon. Mr Walsh saw the plaintiff on 10 March 2015. The plaintiff was complaining of pain and fullness in the left ear following the head injury. Mr Walsh was unable to identify the cause of his complaints and ordered further imaging in the form of a CT scan of the Petrus temporal bones.[57]
[57]Incidentally, in respect of the back injury, the plaintiff was again seen by Dr John Findeisen for the WorkCover insurer on 23 March 2015, to whom he gave a history of persisting problems with the left eye, a feeling of fullness in the left ear, and altered sensation in the left hand and forearm. (DCB 20)
80 Mr Walsh reviewed the plaintiff in October 2015, still complaining of fullness in the left ear and dizziness, but not of pain. A CT scan of the Petrus bones had been normal, as were vestibular function tests, and the only hearing deficit was consistent with noise exposure. Further investigations were uninformative, and Mr Walsh suggested a trial of prednisolone to treat what might be eustachian dysfunction. He could make no connection between the plaintiff’s complaints and the head injury.[58]
[58]DCB 57-59
81 The plaintiff said that he was informed by Mr Walsh that he did not have an ENT problem.
82 In June 2015, Dr Achar also referred the plaintiff to a neurologist, Dr Bernard Infeld, and to a psychologist, Dr Hanafi Guducu. Dr Guducu saw the plaintiff for the next year or thereabouts.
83 Dr Infeld’s reports were not in evidence, but his letter of 26 June 2015 is reproduced in Dr Aliashkevich’s report at PCB 215. In that letter, he sets out a number of findings on examination, and, of the MRI scan, his suspicion about “a small area of hyperintensity in the tectal region on the left of the midbrain. It was fairly subtle.”
84 Dr Infeld’s opinion was that:
“Elvis has a combination of a prolonged post-concussion syndrome and a post-traumatic internuclear ophthalmoplegia. I am uncertain if the above-mentioned MRI abnormality is real or indeed if it correlates with the clinical observation. Nevertheless, he has a definite internuclear ophthalmoplegia on left gaze, and this is most likely to be traumatic in nature given the otherwise normal MRI scan.
…
He is also suffering from a prolonged post-concussion syndrome which is probably exacerbated by his ongoing symptomatic INO. As his headaches have a migrainous quality to them, I have commenced him on a trial of Verapamil 40 mg bd with instructions to increase it to 80 mg bd in a fortnight.
I have also recommended that he not return to work for the time being. Unfortunately, there is probably no work available to him in his workplace that does not involve watching moving objects. I have suggested that he return home to live with his parents and get plenty of rest and be patient I will review him in 6 weeks.”[59]
[59]PCB 215
85 Dr Guducu’s report of 10 December 2015[60] was prepared after seven sessions with the plaintiff, perhaps first seeing him on 7 September 2015. The history included an account of headaches, pain and visual disturbance following the head injury, and of:
“… feeling flat most days, and that he experienced difficulty in getting out of bed in the morning and showering. He stated that he experienced difficulty in concentrating, lacked motivation, and worried about his future.”
[60]Exhibit 3
86 Dr Guducu records her observations of the plaintiff’s speech, affect and mood, thought stream, form and content, and it appears from her observations that he presented to her in much the same way as he presented in Court ─ that is, answering questions after some delay, and appearing anxious and at times irritable. (During re-examination the plaintiff became so irritable with counsel that he began shouting, perhaps because of difficulty understanding the way the questions were framed). Dr Guducu made a diagnosis of an Adjustment Disorder with Depressed Mood in the context of his medical conditions. It was Dr Guducu’s opinion that the prognosis for his mental health was dependent on the consequences of the physical injury, in terms of capacity and pain, and she noted that the plaintiff had reported modest improvement in his physical and mental problems. Dr Guducu thought continued treatment was required.
87 In March 2016, the plaintiff had been seen by Associate Professor Owen White, neurologist, at Dr Infeld’s request.[61] Professor White thought he should see Dr Lionel Kowal.
[61]PCB 96
88 Dr Isla M Williams, neurologist and neuro ophthalmologist, saw the plaintiff for a second opinion in (at least) May 2016.[62] Like others, she took a history of a range of problems attributed to the blow to the head from the falling clamp, and was unable to explain his symptoms.
[62]PCB 98
89 Dr Neil Shuey, neurologist and neuro ophthalmologist,[63] saw the plaintiff on referral from Dr Kowal[64] in August 2016. He obtained a history of dizziness, strange feelings in the left hand, sensitivity to lights, difficulty seeing, soreness and stiffness of the neck (relieved a little by chiropractic), and a feeling of water in the left ear. There were complaints also of reduced sensation on the left side of face, episodic visual vertigo, fatigue and memory disturbance. He noted that a diagnosis of internuclear ophthalmoplegia had been offered, as had deficits of motility. By the time Dr Shuey saw the plaintiff, he had been treated with Endep and Lyrica, which had exacerbated his symptoms. On examination, he thought there were signs suggestive of internuclear ophthalmoplegia. He conducted a range of tests and concluded:
“I agree he has an adduction deficit, which has the appearance of internuclear ophthalmoplegia. I also reviewed his MRI scan from April 2016, and can find no abnormalities in the brain stem, nor any abnormalities of the medial recti to account for this. I am suspicious that it is a pseudo-INO pattern rather than a true INO, and may well relate to his previous surgery.”[65]
[63]PCB 89-95
[64]Dr Kowal’s letter of referral - PCB 101
[65]PCB 90
90 The previous surgery was childhood surgery to correct a lazy eye. Dr Shuey wrote:
“… many of these symptoms, including the hemi sensory symptoms and visual vertigo, sound typical for vestibular migraine, which can manifest following a head injury. … .”[66]
[66]PCB 90
91 Further investigations were conducted, and after Dr Shuey examined the plaintiff again in September 2016, he wrote:
“Examination:
On examination today, he definitely has a clinical right internuclear ophthalmoplegia (as indicated by limited right adduction, with slow adducting saccades, and abducting nystagmus of the left eye, and intact convergence). This together with his sensory symptoms indicates there must be a lesion involving the right medial longitudinal fasciculus, most likely caudal to the pons, although previous close review of his past imaging by myself and others have failed to identify any abnormality in this region.
Management:
As I have explained to Elvis; the fact that his imaging is normal does not preclude a lesion in this pathway, which is manifestly present, as such lesions can be tiny and missed even on MRI. He also has migraines complicating his symptoms at present, but is reluctant to undergo another trial of therapy. At this stage, I have recommended no further treatment, but suggested a review of his clinical findings again in 6 months.”[67]
[67]PCB 91
92 Dr Shuey continued to review the plaintiff, who continued to report headaches, vertigo and nausea, with a mixed response to the medication he had been prescribed, some of which caused difficulties. On last review, in June 2017, Dr Shuey wrote that the plaintiff had had a good response to topiramate, with resolution of his headaches but some adverse psychological reaction to it,[68] suggesting a different medication from within the antiepileptic class.
[68]Altered mood and suicidal ideation.
93 In the second half of 2016, the plaintiff was seen at the “Tree of Life” integral centre by Dr John Hare, chiropractor. He made a diagnosis of post-concussion syndrome,[69] and of cervical spine dysfunctions for which chiropractic treatment was administered.
[69]PCB 103
94 In March 2017, Dr Achar referred the plaintiff to Associate Professor Michael Wong, consultant psychiatrist. He obtained a history of increasing anxiety and depression following diagnosis of brain injury, and noted that psychological treatment and Valium had not been effective in the past. He found the plaintiff to be anxious and depressed on examination and wrote that the clinical picture was of an Adjustment Disorder with Anxiety and Depressed Mood for which he commenced him on Zoloft in a low dose, which he intended to increase as tolerated. He thought the plaintiff would benefit from referral to a psychologist, and that he was then unfit for any work.[70]
[70]PCB 110
95 Dr Shuey referred the plaintiff to the Headache Clinic at St Vincent’s Hospital where he has been treated by Dr Christina Sun-Edelstein, neurologist. She first saw the plaintiff in September 2017 and, on the findings she made on examination, and the history, formed the impression that:
“Elvis’ headaches are most consistent with refectory chronic post-traumatic headaches with migrainous features. He has tried numerous headache preventative treatments and while there has been some improvement with flunarizine, headaches remain troublesome. At this stage a trial of Botox would be warranted and, after discussion of risks & benefits, he was keen to go forward with the procedure today.”[71]
[71]PCB 112
96 Dr Shuey’s report records that the botulinum toxin was injected into several areas.
97 Dr Sun-Edelstein reviewed the plaintiff in January 2018 and obtained a history of minor improvement in overall headaches after the Botox, but no changes in dizziness and visual disturbance. Further Botox injections were performed. Reviewed again in April 2018, the plaintiff reported a significant decrease in headaches for about two-and-a-half months, gradually increasing in intensity over the last two weeks but still better than before the Botox, along with an improvement in neck pain, though dizziness and visual disturbance persisted.[72] Botox treatment was repeated.
[72]PCB 115
98 In later, undated correspondence,[73] Dr Sun-Edelstein reported that the last Botox injection had not produced an improvement, so that treatment was ceased, and instead, a greater occipital nerve block was performed. Dr Sun-Edelstein recommended psychiatric review, as well as multidisciplinary pain management.
[73]PCB 116
99 Writing to the plaintiff’s solicitors in June 2018, Dr Sun-Edelstein wrote:
“Given the neurologic, cognitive and psychological features, and temporal relationship between the accident and onset of headaches, Elvis’ clinical picture is most consistent with ‘Persistent headache attributed to traumatic injury to the head’ (formerly known as ‘chronic posttraumatic headache’) with migrainous features.”[74]
[74]PCB 117
100 Dr Sun-Edelstein suggested a range of other referrals (and testing) that might occur, then noticing that the cost of these was a problem. She wrote that the prognosis for his headache syndrome was uncertain, but given the length of time for which they had already persisted, she thought it was likely they will continue in the longer term.[75]
[75]PCB 118
101 On review in November 2018, Dr Sun-Edelstein reported that the nerve blocks had produced a significant improvement in headaches and neck and shoulder pain for about two months, though dizziness, visual disturbance and cognitive slowing persisted unchanged. She repeated the nerve blocks, and reported in February this year that they had once again been helpful in reducing headaches and neck/shoulder pain for about two months, and so they were repeated. She wrote that it was appropriate to refer the plaintiff for a neuropsychiatric assessment at the St Vincent’s Hospital.
102 The plaintiff’s progress through the extensive treatment and investigation of his head injury complaints is summarised in Dr Achar’s reports, particularly those of 17 June 2016 and 18 February 2018.[76] Writing to the Accident Compensation Conciliation Service in June 2016, Dr Achar set out the various forms of treatment that had been tried up to that point, and the “mixed” responses of the plaintiff to them. The letter appears to have been written in the context of a dispute about funding for the plaintiff’s medical treatment. Dr Achar wrote:
“… Due to the cancellation of his funding for medical expenses, Elvis has not been able to attend his rehabilitation program. They have also certified him unfit to drive and he had to use the help of his family to go to appointments. We have requested work cover for a taxi service to help Elvis with this issue.
Since there has not been much of a change in his symptoms from the time of his injury and he has been certified unfit to drive at this stage, I think it is prudent that Elvis get all the medical and related help possible to go back to his rehab program to help with his recovery process. I would really appreciate your help in this regard to help my patient recover.
Elvis did not have the above symptoms before he sustained his injuries at work. He did not have any pre existing medical conditions which contributed to his symptoms. Elvis would benefit from attending the comprehensive Rehabilitation program as advised by Dr Infeld. It is hard to predict the exact duration of the rehabilitation treatment required but I would expect at least 6 to 12 months of treatment would be required.”[77]
[76]Dr Achar’s reports and correspondence are at PCB 68-79
[77]PCB 73
103 Writing in February 2018,[78] Dr Achar wrote:
“Elvis continues to have frequent headaches, dizziness, left ear and left sided facial pains, blurring of vision and neck pain, numbness and spasms in the left arm and hand since the head injury.
Elvis has been trialled on a number of medication[s] which once again caused a lot of side effects. Due to the side effect of Topamax which was also prescribed for pain, Elvis developed severe anxiety and some suicidal thoughts. He has been referred to see a Psychiatrist and Psychologist. He has been on Zoloft which has helped slightly with the mood, but has not made any difference to the headaches, the neck pain, the blurring of vision and left facial pains. Elvis has symptoms of acquired brain injury like loss of concentration, tiredness, intermittent confusion and headaches. He is unable to organise himself and requires the help of his family to help with cooking, cleaning etc and needs frequent reminders for the activities he has during the day.
Elvis was last seen on the 1/8/2018. There has been no improvement in his symptoms. he is attending the headache clinic at the St Vincent’s hospital and trying Botox injection as advised by the specialists. Elvis finds that when he attends the Chiropractor his symptoms improve transiently but is finding it difficult to pay for the services.
It is highly unlikely that Elvis will be able to return to any type of work in the foreseeable future.”[79]
[78]This date may well be incorrect as, in the body of the report, there is reference to having last seen the plaintiff in August 2018
[79]PCB 77-78
104 Dr Hajoona has taken over as the plaintiff’s general practitioner. In his report of 31 May 2019,[80] Dr Hajoona listed the plaintiff’s conditions, noting that, in relation to the head injury:
[80]PCB 122
(a) the plaintiff was being treated with occipital nerve blocks;
(b) he had been referred to the Barbara Walker Pain Centre at St Vincent’s Hospital;
(c) he was awaiting further psychological treatment and investigations;
(d) the neuropsychiatrist at St Vincent’s Hospital had recently prescribed Citalopram;
(e) psychotherapy with a psychologist had been approved;
(f) he had weekly chiropractic treatment, and continued to take analgesia.
105 Dr Hajoona thought the prognosis for the head injury was unsure.
106 As the foregoing review of the reporting from a range of specialists involved in the investigation and treatment of the plaintiff’s head injury-related symptoms shows, the diagnoses offered vary, and a considerable variety of treatments have been tried which, to date, have only relieved the headaches and neck pain by use of repeated occipital nerve blocks. In other respects, the investigation and treatment of his symptoms of dizziness and visual disturbance appear to be something of a work in progress, and further treatment and investigation is planned. Of those involved in his treatment, Dr Infeld, Dr Shuey and Dr Sun-Edelstein appear to have had the most contact with the plaintiff, and the “common thread” in their diagnoses appears to be post-concussion syndrome with migrainous headaches.
The medico-legal reporting of the head injury symptoms
107 Associate Professor Geoffrey Boyce, consulting neurologist, examined the plaintiff for the WorkCover insurer in September 2015 in relation to the head injury. He found the plaintiff’s presentation unusual. He agreed with an earlier diagnosis (apparently made by the neurologist, Leslie Roberts, though no report is in evidence here) that there is “a peculiar and complex strabismus to the left. I would not call it an internuclear ophthalmoplegia.”
108 As to the cause of the symptoms of which the plaintiff complained, Professor Boyce wrote:
“I would have to say that I am at a loss to describe exactly what is going on with Mr Haljilji. He certainly had a mild traumatic brain injury. However, his MRI scan shows no significant pathology, particularly in the midbrain tegmentum.”[81]
[81]DCB 30
109 Professor Boyce wrote that he would have expected a complete recovery and thought the plaintiff had a significant psychological and psychiatric disorder that needed further evaluation.
110 Professor Jacques Joubert, consultant neurologist, examined the plaintiff on 14 January 2016. He felt the only abnormality to be found was a congenital squint, and did not think his visual problems were an internuclear ophthalmoplegia. He did not think that any of the symptoms with which the plaintiff presented related to the injury at work.[82]
[82]DCB 39
111 Professor Joubert saw the plaintiff again on 16 August 2017.[83] He thought the plaintiff gave an unembellished history and that the examination findings were unremarkable. His diagnosis was of mild closed head injury that did not explain the plaintiff’s ongoing complaints, as in the normal course they should have resolved completely, and that the plaintiff, so far as the head injury was concerned, was fit for work and needed no further treatment.
[83]DCB 48
112 On 28 March 2017, the plaintiff was examined on behalf the WorkCover insurer by Dr Dush Shan, consultant psychiatrist.[84] Dr Shan was not provided with any information about the head injury, and made a diagnosis, with some reservation, of an Adjustment Disorder for which twelve months of treatment may be of help.
[84]DCB 79
113 The plaintiff was examined by the specialist in rehabilitation and pain medicine, Dr Clayton Thomas, at the request of his solicitors in August 2016. After reviewing the history and the investigations, Dr Thomas wrote that the consequences of the head injury seem to be more (than the back) significant for him, but the diagnosis and prognosis of this he thought best left to other specialists.
114 The plaintiff was examined by Mr Kenneth Myers, consultant general surgeon, in September 2017,[85] who took a history of widespread complaints, and described only a head injury with neurological disturbance which was outside his expertise.
[85]PCB 127
115 Dr David Gale, eye specialist, examined the plaintiff in October 2017.[86] He could find no ophthalmological problems of any significance, much less related to the head injury.
[86]DCB 89
116 In October 2017, the plaintiff was examined by Professor Peter Doherty, consultant psychiatrist. Professor Doherty had available to him much of the medical reporting in the case, and also an extensive collection of clinical records from the medical practices involved in the plaintiff’s treatment. Professor Doherty thought his presentation straightforward, that the mental state examination was unremarkable, and that he presented without obvious signs of anxiety or depression. Professor Doherty wrote:
“In my opinion, the diagnosable psychiatric condition is that of a somatic symptom disorder with predominant pain, persisting.
There are other physical symptoms as well, mostly neurological.”[87]
[87]DCB 106
and:
“I gave consideration as to if there is an adjustment disorder with depressed and anxious mood present. In my opinion, there is not. The clinical presentation is that of multiple somatic symptoms typical of the complex of symptoms in a somatic symptom disorder. There is excessive worry, pre-occupation and concern about his health status. That concern interferes with his daily activities and causes distress to him, and thus he meets the criteria under DSM for such a diagnosis.”[88]
[88]DCB 106
117 In answer to specific questions, Professor Doherty wrote that the nature of the symptoms is such that the plaintiff would not currently tolerate the activities of work, and that he did not have the capacity for his former work or any other work. He thought the condition was moderate in severity, that the prognosis was unfavourable and that further assessments and investigations would encourage and reinforce it.
118 Dr Robyn Horsley, occupational physician, first examined the plaintiff on 4 January 2018. Dr Horsley noted the plaintiff’s history, and the reports of others, concerning his head injury-related complaints, and, beyond noting that he had symptoms suggestive of Severe Depression, does not really offer her own view of the nature of his head injury-related symptoms, other than to say that, in her view, his mental health issues would prevent any sort of work.
119 Dr Horsley wrote a further report after being asked to review the report from Professor Mark Cook. After doing so, she wrote that she agreed with Professor Cook that the prognosis was poor and that the plaintiff’s primary disability was his “complex psychological situation”. As to this, she said she relied upon psychiatric opinion as to diagnosis, prognosis and prospects of rehabilitation.[89]
[89]PCB 150
120 Dr Horsley saw the plaintiff again earlier this year and her report of that consultation is at PCB 151. She took a detailed history of the plaintiff’s back injury-related symptoms and a history of persisting neck pain interfering with sleep, daily headaches, dizziness, visual disturbance, and nausea but not vomiting, recording that the plaintiff described fits severe enough to make him think he might have a convulsion. On examination, relevant to the head and neck injury, she found restriction of cervical spine movement but no anatomically determined disturbance of sensation.
121 Under the heading “Diagnosis”, Dr Horsley wrote that she regarded the Medical Panel’s decision as “final” and so confirming that the plaintiff had no ongoing medical condition related to his head injury.
122 On 9 January 2018, the plaintiff was examined by Dr Judy Tang, consultant neuropsychologist. Dr Tang had available to her a great many imaging studies and specialists’ correspondence concerning the aftermath of the injury to the plaintiff’s head, and she put the plaintiff through a three-hour assessment of his “cognitive strengths and weaknesses”. She administered six tests designed to assess his cognitive function, as well as the authenticity of his performance on testing. She thought his performance on testing authentic, and noted that he concentrated on the testing procedure for 180 minutes without fatigue or requests for a break. In her opinion, the neuropsychological assessment revealed mild cognitive difficulties in information-processing, attention span and executive function. Dr Tang did not think there was any evidence of a permanent acquired brain injury and thought that the poorer performances were secondary to his chronic pain and fatigue. She wrote that these mild cognitive difficulties would be something of an obstacle to return to work in suitable employment, and that these difficulties were not likely to change “for as long as his pain and fatigue persists”.[90]
[90]PCB 173
123 In evidence were three reports from the consultant psychiatrist, Associate Professor Paoletti.[91] Professor Paoletti first saw the plaintiff on 7 February 2018 at the request of his solicitors, and had available to him a great deal of the medical reporting in evidence here. Professor Paoletti’s history included difficulties with his employer following his back injury, which difficulties were persisting at the time of the head injury. At the time of his examination, the plaintiff was taking Zoloft, but not having psychiatric or psychological treatment. Professor Paoletti made a diagnosis of Depressive and Anxiety Disorders and queried whether there was a neurocognitive disorder as well. He stated that the depression and anxiety arose from both the spinal injuries and the head injury, as well as from the way in which the plaintiff was treated by his employer. He also felt that the drug, Topamax, which had been prescribed for the plaintiff’s headaches, may also have contributed. Professor Paoletti thought it essential that he be assessed by a neuropsychologist, and that at that time the plaintiff had no capacity for any work.
[91]PCB 177-211
124 Professor Paoletti re-examined the plaintiff in March of this year. Professor Paoletti made a diagnosis of unspecified Depressive and Anxiety Disorders, the latter with phobic and post-traumatic features. On the basis of Dr Tang’s assessment, he excluded traumatic brain injury as a cause of any cognitive disturbance. Professor Paoletti thought the plaintiff’s anxiety derived from the spine injuries, symptoms arising from the blow to the head, the plaintiff’s perception of the circumstances in which the head injury was sustained, as well as the sudden onset of a variety of head symptoms. He felt that the cognitive difficulties were not only related to pain and fatigue, as Dr Tang had written, but that anxiety and depression were also causative. He thought his prognosis guarded and that, from a psychiatric point of view, he was unfit for all work and that this situation would persist, qualifying this by saying a lot more psychological work needed to be done with the plaintiff.
125 Dr David Barton, consultant occupational physician, examined the plaintiff in March 2018.[92] He did not think there was much wrong with the plaintiff, and wrote that he was fit for his former employment. Dr Barton was provided with further documentation later, and this led to no change in his opinion.
[92]DCB 109
126 On 3 October 2018, following a referral from the Magistrates’ Court, a differently constituted Medical Panel, comprising occupational and environmental physicians, rheumatologists, psychiatrists and a neurologist, provided a certificate of opinion which, so far as the head injury is concerned, was that there was no medical condition affecting the plaintiff’s head and that, from a psychological or psychiatric point of view, the plaintiff suffered from “a mild, partially resolved, Adjustment Disorder with Depressed and Anxious Mood”.[93] In their Reasons, the members of the Medical Panel wrote that the persisting symptoms related to the events at work on 16 April 2014, and that, in their opinion, any effects of the head injury would have resolved by July 2015 and, further, that the plaintiff suffers from a congenital strabismus and not from internuclear ophthalmoplegia.[94]
[93]DCB 168
[94]DCB 178
127 As for his psychiatric and psychological problems, the Medical Panel concluded that (largely) from the circumstances of the head injury and the symptoms afterwards, he had developed “an Adjustment Disorder with Depressed and Anxious Mood as a consequence of the head injury. It has now largely resolved.”
128 Dr Ales Aliashkevich, neurosurgeon, also assessed the plaintiff in respect of the head injury. In his report of 16 November 2018, he reviewed much of the reporting relating to this aspect of the plaintiff’s applications and wrote “in my opinion, the head injury on or around 11 to 2015 has caused cerebral concussion with significant postconcussional syndrome”.[95] Dr Aliashkevich wrote that the back injuries incapacitated the plaintiff for pre-injury duties and that the head injuries caused permanent and lasting incapacity for any employment.[96]
[95]PCB 230
[96]PCB 231
129 Dr Aliashkevich re-examined the plaintiff on 26 March 2019. On this occasion, he had a number of reports that had not been available on the first occasion. As he had before, Dr Aliashkevich, so far as the head injury is concerned, made a diagnosis of postconcussional syndrome, and repeated his opinion that the plaintiff had an incapacity for his pre-injury work as a result of the back injury, and that the head injury had caused an incapacity for any employment.[97]
[97]PCB 248
130 On 24 November 2018, the plaintiff was examined by Professor Mark Cook neurologist and epileptologist.[98] Professor Cook noted that the plaintiff appeared slightly depressed but gave a clear account of his circumstances and did not give the impression he was exaggerating or embellishing his account. Based on his review of the available reporting, his examination, and the history in relation to the head injury, Professor Cook stated:
“The 2nd problem involved a blow to his head from a F clamp that fell some distance onto the back of his head. He has suffered post-traumatic vestibular symptoms since, as well as traumatic migraine. There may be a cervical component also. This is a very well recognised condition, and he has undergone specific therapies for this with Botox injections and anti-migraine agents. These have had limited benefit unfortunately. I don’t think there’s any question the symptoms relate to the blow on the head sustained on 11 February 2015.”[99]
[98]PCB 250
[99]PCB 256
131 Further:
“As a result of these problems [in context both the back and the head problems] and his inability to work he has become quite depressed, and the psychiatric component of his illness is quite significant. … .”[100]
[100]He noted that formal neuropsychological testing had found no abnormality of significance.” (PCB 256)
132 Professor Cook thought that the disturbance of ocular motility related to earlier problems – his squint and not the head injury. Professor Cook wrote that the situation was complicated by significant psychological problems, that the plaintiff required ongoing treatment for his physical symptoms, and his mental symptoms, and that the physical problems prevented manual employment. He thought the plaintiff’s prognosis poor, because the organic problems “have become entangled with a complex psychological situation”.[101]
[101]PCB 257
133 Professor Cook re-examined the plaintiff in March of this year.[102] Examination findings included marked tenderness and spasm of the cervical musculature and modest restriction of neck movements, but no radicular symptoms. Once again, Professor Cook identified the April 2014 event as the cause of the plaintiff’s back symptoms, and the head injury of February 2015 as the cause of neck pain, headache and dizziness. He repeated his view that all “of this” was complicated by his significant depressive illness, but that he did not have any significant cognitive problems. In Professor Cook’s opinion, “both the neck and the back problems by themselves would be sufficient to prevent that currently”.[103] He thought his prognosis poor, as a chronic pain state had developed which was compounded by a marked depressive element.
[102]PCB 258
[103]That is, a return to full-time unrestricted pre-injury employment
134 A report from Professor Anthony Buzzard, general surgeon, appears at DCB 60. It appears to be an addendum to an earlier report that is not in evidence, and no reference to it was made in the course of the hearing.
The Plaintiff’s account of the head injury
135 The frequency, severity and authenticity of the plaintiff’s experience of the symptoms he attributed to the head injury, and of his psychological problems, was not challenged. In his first affidavit, he described difficulty with sleep, sadness, irritability and instability of mood, interference with concentration and memory from the headaches, difficulty interacting with others in social and personal and business affairs, social withdrawal and interference with his religious pursuits.[104] In his more recent affidavits, the plaintiff states that he had some relief from his headaches with chiropractic treatment of the neck, that he continues to have injections in the head, and that his relatively new treating general practitioner, Dr Hajoona, has set in train further investigations and referrals for his problems.
[104]Paragraphs 15-18, PCB 31-32 and paragraphs 22-36, PCB 33-36
Submissions of Counsel concerning the head injury
136 The defendant submitted that the evidence showed that there had been a minor head injury as a result of being struck by the clamp and that any persisting effects were likely due to non-organic causes, and that the weight of the medical evidence was that there had been no neck injury, and that on the evidence, if it is anything, it is a psychological injury. By reference to the earlier and extensive scans and investigations and specialist medical opinions, it was submitted that I could not be satisfied that any head or brain or neck injury of any consequence had been suffered, much less that there was any continuing organic consequence of such an injury ― pointing out that the brain and brainstem MRI scans performed on 26 October 2016 (the clinical notes for which were recorded as “right internuclear ophthalmoplegia. Strongly suspect brainstem injury, post-traumatic”), appears at PCB 227, and the conclusion is that it is a normal study, as was the MRI of the neck performed on 17 November 2018 which is to be found at PCB 228.[105]
[105]The radiology is extensively reproduced in Dr Aliashkevich's reports
137 The defendant submitted that, on the whole of the evidence, I could not be satisfied that there was any ongoing organic head injury-related cause of the plaintiff’s complaints.
138 As to psychological or psychiatric consequences of the head injury, the defendant submitted that the plaintiff may have developed an Adjustment Disorder at some stage, but that it produced no ongoing incapacity for work, and that the high point of the reporting from the plaintiff’s point of view, Associate Professor Paoletti’s opinion[106] was that it resulted from the back injury and the head injury and that, undifferentiated in this way, could not support a finding of severe mental or behavioural disturbance or disorder, even though Professor Paoletti found them to be genuine and derived temporally and emotionally from the blow to the head. The point was also made that the specialist radiologist was unable to identify any head or neck abnormality. The defendant submitted that there had been a paucity of psychological and psychiatric treatment, and that the plaintiff has hardly ever, and only occasionally, been treated with antidepressant medication.
[106]Especially as Dr Tang’s neuropsychological assessment had been considered and it was that the plaintiff’s psychological presentation was multifactorial
139 The defendant also submitted that permanence was not made out, as the plaintiff’s recent engagement with Dr O’Brien and the psychiatrist was unreported.
140 The defendant submitted that Dr Sun-Edelstein’s reporting intertwined the psychological and physical consequences of the head injury, because the prognosis for the post-traumatic headache syndrome was influenced by non-organic factors. The defendant pointed out that of more recent times, the plaintiff has been referred to a Dr O’Brien and commenced on new medication in May of this year, but that no report from Dr O’Brien was in evidence, and the new medication is unidentified. Further, it was pointed out that although the plaintiff is presently attending a psychologist, there was no report from the new psychologist either.
141 The defendant submitted that Professor Cook’s opinions did not help the plaintiff’s case, because his views on work capacity were founded upon a combination of all the factors affecting the plaintiff’s health, whether physical or psychological.
142 The defendant submitted that Professor Doherty’s analysis should not be read as any more than saying that the plaintiff’s own concern about his physical symptoms, whether caused by the head injury or the low back injury, support a diagnosis of a somatic symptom disorder, but that it is not possible to say which of the plaintiff’s injuries contribute to that, or in what proportion.
143 During submissions[107] the proposition that two physical injuries could equally contribute to a single and totally disabling psychiatric condition was explored and, in the end, the defendant allowed that an equal contribution from two separate causes (one of them non-compensable) would not prevent the whole of the psychiatric consequences being evaluated in the assessment of serious injury, pointing out also, that Professor Doherty is alone in the diagnosis of a Somatic Pain Disorder.
[107]T101-102
144 The defendant, in any event, submitted that I should accept the analysis of the most recent Medical Panel, to the effect that the plaintiff now suffers from only a Mild Adjustment Disorder with Anxious and Depressed Mood that does not interfere with his ability or other capacity for work.
The Plaintiff’s submissions
145 The plaintiff began by tendering Exhibit 6, the record of surveillance, noting that none of the video has been tendered.
146 After extensive reference to the specialists’ reports and the various investigations directed to revealing a cause of the plaintiff’s complaints, the plaintiff submitted that, in the end, there was no medical support for the proposition that any neck injury had been suffered in the head strike. Further, the plaintiff conceded that, despite the attention paid to visual disturbances initially, and the diagnosis of internuclear ophthalmoplegia, the end result of all the investigations was that the plaintiff’s various visual disturbances and complaints (apart from those thought to be migrainous) could not be attributed to the head strike, as “there’s no support for that”.[108]
[108]As “it was felt to be congenital” – T160
147 So in the end, the plaintiff’s case was that the organic consequences of the injury sustained as a result of the head strike were post-traumatic migrainous headaches, for which there was a deal of support in the medical reporting and in the plaintiff’s response to treatment directed specifically to the headaches.
148 As to the defendant’s submission that the psychiatric condition could not support a finding of serious injury because it was impossible to discern from the reporting the relative roles of the back caused psychiatric disability and the head strike caused psychiatric disability, it was submitted that on the sequence of events, I should be satisfied that it was the head strike that caused the psychiatric problems because none were recorded between the back injury in April 2014 and the head strike in 2015.
Analysis
149 The symptoms the plaintiff has reported following the head strike injury were many and various. In final submissions, the plaintiff did not rely upon injury to the neck. Nor was there reliance upon the visual disturbances, thought by some to be internuclear ophthalmoplegia, as being head strike caused. Nor was there reliance upon the vestibular disturbance that was investigated by Mr Patrick Walsh soon after the head strike was suffered. In the end, the only organic consequences of the head strike injury relied upon in this application were the headaches variously described as post-traumatic or post-concussive migrainous headaches.
150 It has often been said that the task of evaluating diverse and at times contradictory medical opinions about the significance and cause of a patient’s complaints is not made easier in applications such as this, where none of the medical witnesses attend to be cross-examined, and so the competing views about any particular aspect of the medical issues in the case are never properly tested or explained.
151 As to the headaches, they have being investigated and treated over a number of years by neurologists, and since 2017, at the St Vincent’s Hospital Headache Clinic. Initially they responded to treatment with medication directed at vestibular migraines, though this was discontinued because of an adverse psychological reaction. Next, they were treated with Botox injections with some, but not lasting, relief. They have, of more recent times, been treated with occipital nerve block injections, as documented in the reporting of Dr Sun-Edelstein, where she reports that her administration of occipital nerve blocks has produced periods of significant improvement in the plaintiff’s headaches and associated neck and shoulder pain, though not the plaintiff’s dizziness or visual disturbances.
152 As I have already mentioned, I accept the plaintiff’s account of his symptoms, and the authenticity of his account of them, and the severity of them, was not challenged in cross-examination, and it was not suggested that his account of them was untruthful or in any way exaggerated.
153 As I have already set out, the medico-legal opinions in evidence concerning the cause of the plaintiff’s experience of the headaches vary widely. A number are of the view that there is no head injury-related cause. Some express no opinion, as it is outside their expertise. Others support the view that they are post-concussive in nature.
154 After reviewing the whole of the evidence, I have concluded that, where they are at odds, the opinions of Doctors Infeld and Sun-Edelstein should be preferred to those of the medico-legal consultants who express a contrary opinion and who have had much less contact with the plaintiff. The treating neurologists have had the most extensive clinical contact with the plaintiff, and their diagnoses are based upon multiple consultations and upon his response to the various forms of treatment they have administered or supervised. It is their opinion that the plaintiff’s persistent headaches and some of his visual disturbances are post-traumatic and migrainous in nature and account for some but not all of the symptoms of which he complains. Their opinion is supported by Dr Aliashkevich, and Professor Cook. Accepting the plaintiff’s account, as I do, he suffered from no such symptoms until the head injury was sustained, and although temporary relief or amelioration of them has been achieved at times, the headaches and associated symptoms persist and are disabling in the way he has sworn.
155 For these reasons, I am satisfied that, as a result of the clamp striking his head on 11 February 2015, the plaintiff suffers from post-traumatic migrainous headaches[109] which have been, and continue to be, largely resistant to treatment and occur with such severity and frequency that the plaintiff has no capacity for suitable employment, and that this situation is likely to continue for the foreseeable future. In my view the experience of those symptoms is properly regarded as an impairment of loss of body function of his head and/or brain. At the time the head injury was suffered, I have already found that his capacity for employment was greatly diminished by the back injury which, as I have said, restricted his capacity for work which has any significant physical component and that, at best, much lighter and mostly sedentary forms of employment which yield less than 60 per cent of his “without injury” earnings on an annual basis, represented his residual capacity for employment. There was evidence that if he was able to work full time in those forms of employment, he would earn in the vicinity of $60,000 a year. I am satisfied that the plaintiff’s headaches, taken alone, would prevent a return to any of the lighter forms of employment suggested in the vocational reporting, and, in any event are such that he would not be able to attend employment on a regular and reliable basis. In my view, the loss of his remaining capacity for employment, such as it was, has economic consequences which are “serious” in the required sense[110], and which meet the before and after injury earnings comparison requirements of the section[111].
[109]The experience of which is an impairment or loss of function of his head or brain.
[110]The loss of what remained of his capacity to earn after the back injury, to a man of his age, is in my view at least very considerable.
[111]i.e. that at the date of hearing the plaintiff has a loss of his “post back injury earning capacity” of 40% or more and that the plaintiff will, after this date, continue permanently to have a loss of that earning capacity which will be productive of financial loss of 40% or more. I am also satisfied that the plaintiff does not have a capacity for any employment which, if exercised, would result in the plaintiff earning more than 60% of his post back injury earnings from personal exertion had the head injury not occurred.
156 The plaintiff also put his case in relation to the head strike injury under paragraph (c); that is, that it caused a permanent and severe mental or behavioural disorder. As to this, the plaintiff bears the onus of proof. In my view, it has not been discharged. There is no consistency between the various psychiatric and psychological opinions in the case as to the diagnosis. There is no report, because there has never been one, from any psychiatrist who has treated the plaintiff over any significant period of time. His psychiatric symptoms have not been the subject of sustained pharmacological management. The cause of his psychiatric symptoms, at whatever level, is attributed by those who accept them to both of the injuries he has sustained and upon which he relies in these two applications. Although it was submitted that, because he had had no treatment before the head injury, I should infer that it is the head injury that is the cause of his psychiatric illness, none of the medical specialists in the field have said that. Rather, as mentioned, they attributed his mental ill-health to all that has gone before, including the low back injury.
157 For these reasons, in proceeding CI-17-05604, the plaintiff is granted leave to bring a proceeding for the recovery of damages for the pain and suffering and loss of earnings consequences of the injury to his head sustained in the course of his employment on 11 February 2015.
- - -
0
5
0